High Judicial Council Set to Create a Makeshift High Court

The Socialist parliamentary majority is preparing to fill the empty seats at the High Court, which currently has only two of its 19 judges, with appointed temporary members from the first instance and appeals courts, through the High Justice Council (KLGj).

If implemented, the plan will be a serious violation of the Constitution and legal framework, and will result in severe damage to the justice system in Albania.

The plan has been floated by several media outlets close to the government, which reported that EU-funded EURALIUS mission will advise the KLGj to appoint “temporary” judges to the High Court, which will be picked from the local first instance and appeals courts.

This is the same scheme employed for “Temporary” General Prosecutor Arta Marku’s unconstitutional appointment. First, EURALIUS is asked to submit a “legal opinion” according to government’s needs, and then this opinion is presented as a solution proposed by international partners. As such, it is then preached as binding – a sacred commandment that has precedence over the Albanian Constitution and laws.

The proposal to appoint temporary judges from lower courts to the High Court is fully unconstitutional and illegal.

First, it violates the constitutional powers of the President, to whom the Constitution grants the sole right to appoint High Court judges. Article 136 of the Constitution stipulates that:

The judges of the High Court shall be appointed by the President of the Republic upon proposal of the High Judicial Council, for a 9 year term, without the right to re-appointment.

The KLGj can appoint judges only in some limited cases that are clearly defined by the Constitution, leaving no room for any interpretation. Article 136 states that the KLGj may appoint members of the High Court only when:

“The President is silent [for] 10 days following the day of the decision of the High Judicial Council [to propose candidates to the High Court]”

“The decree of the President rejects the appointment[s]…[and] the High Judicial Council vote against the decree.”

Neither of these two conditions is currently met: the KLGj cannot appoint judges to the High Court simply because it has failed to propose any candidates to the President, while he has not ignored or refused the appointment of such candidates to the High Court.

Apart from the two occasions mentioned above, the Constitution does not give the KLGj any power or right to appoint judges to the High Court by itself, much less “temporary” judges that do not fulfill the formal criteria. Article 147/a of the Constitution defines all functions of the KLGj, but none of its eight functions has anything to do with or could be interpreted as the KLGj’s right to independently appoint judges to the High Court, whether full-term or “temporary.”

The Law on Governance Institutions of the Justice System, art. 85/2, clearly states that the KLGj “shall propose the candidate judges for positions at the High Court to the President of the Republic in accordance with the Constitution and the Law ‘On the Status of Judges and Prosecutors in the Republic of Albania’”.

Promotion of judges– the KLGj opens the call, draws up a list of candidates that meet the criteria, and sends it to the President, who decrees the appointment of the highest ranking judge.

Appointment of non-judge candidates– the KLGj opens the call, draws up a list of candidates who meet the criteria, and sends it to the President, who appoints the judge.

According to the Constitution, appointing judges to the High Court in both scenarios is a prerogative of the President.

Third, the Constitution does not recognize, nor does it allow temporary terms or temporary transfers of judges to the High Court. Albania’s Constitution and legal framework clearly stipulate that the term of a High Court judge is 9 years, neither less nor more, and they cannot be transferred.

Beyond the unconstitutionality and illegality of appointing judges to the High Court in the way supposedly suggested by EURALIUS, such action would further obstruct the work of a judicial system that already faces major difficulties due to the current numerous vacancies at all levels of the judiciary.

Many first instance and appeals courts have numerous vacancies and some are almost empty because of the vetting. For this purpose, in January 2019 the KLGj adopted a scheme of transferring judges temporarily to courts that needed them most.

No less important in this unconstitutional effort is the role of EURALIUS. Although one has yet to see the EURALIUS proposal reported by the government-controlled media, it would be no surprise that such an opinion supporting this unconstitutional scheme could be fabricated by EURALIUS.

The EURALIUS mission reports to the EU Ambassador in Albania, Luigi Soreca, who has been frantically involved in devising all kinds of ad-hoc solutions in order to patch up the justice institutions rendered dysfunctional by an ill-considered and badly planned justice reform, which was drafted under the auspices of his superiors at the European Commission by a group of Eurocrats with no experience or know-how in similar major reforms.

Furthermore, the Albanian government’s contract with EURALIUS V mission has not been made public, while the European Commission continues to block public access to any documents relating to the mission. No information has been made available about who works for this mission and who its experts are. In the likely event of EURALIUS presenting a legal opinion on the matter at stake, as it did before with its notorious opinion opening the way to “Temporary” General Prosecutor Arta Marku’s unconstitutional appointment, such an opinion will again be unconstitutional.